Community Levee Association

The Community Levee Association agrees with Mr. Cooper's opinion below, first published as a letter to the editor in the July 29th edition of the Wall Street Journal.


California Has the Right to Ban Same-Sex Marriage, July 29, 2009

 In his July 20 op-ed “Gay Marriage and the Constitution,” attorney David Boies explains why he and his co-counsel, Ted Olson, are attempting to take the controversial public policy issue of same-sex marriage out of the hands of California’s voters and place it in the hands of federal judges. A majority of Californians recently amend­ed their state constitution to restore the age-old definition of marriage, which the California Supreme Court had discarded in an activist, four-to-three decision recognizing same-sex marriage.

Mr. Boies argues that defining marriage as a union between one man and one woman—the definition common to 44 states, the federal government, nearly every other country in the world, and nearly every civilization in history—reflects nothing but “the residue of centuries of figurative and literal gay-bashing.” Indeed, he likens the traditional understanding of marriage to the racist Jim Crow laws which prohibited interracial marriages.

Mr. Boies’s divisive rhetoric defames as bigoted not only the majority of Californians, but also the overwhelming majority of Americans—decent people from all walks of life, all political parties, and all races and creeds. Indeed, President Barack Obama supports giving gay couples the legal protections of domestic partnerships, but opposes same-sex marriage—precisely what California has done. Mr. Boies denounces all those who hold this view as gay-bashers. Surely he does not really believe this.

The traditional definition of marriage has nothing in common with antimiscegenation laws. From their inception, those laws were designed to serve the hateful causes of white supremacy and racial oppression; they were rooted in bigotry and furthered no legitimate governmental interests whatsoever. The overriding purpose of marriage, in nearly every civilization throughout history, has always been to channel potentially procreative sexual relationships into stable and binding unions that will provide for the care and upbringing of the offspring of those unions.

It is an undeniable biological fact that only opposite sex relationships naturally, and often inadvertently, produce children. Accordingly, traditional opposite-sex marriages further the fundamental purpose of marriage in a way that same-sex relationships do not. This purpose of marriage goes to the very survival of civilization; it has nothing to do with literal or figurative gay-bashing.

The Supreme Court cases recognizing the fundamental right to marry contain not a scrap of support for redefining marriage to include same-sex unions. On the contrary, these cases have uniformly recognized the connection between the right to marry and society’s existential interest in creating, nurturing and educating the next generation. The court specifically rejected Mr. Boies’s constitutional arguments many years ago, and it specifically said that its recent decision invalidating criminal antisodomy laws did not imply a right to same-sex marriage. The people of each state are free to redefine marriage to include same-sex unions, and a handful of states have begun experiments of this kind. Innovation and change are the hallmarks of a democratic and pluralistic society. Maybe these experiments will succeed and be imitated by other states. Or maybe not. But if the federal courts yield to Mr. Boies’s demands, that will be the end of the debate, and there will be no going back—not for California nor for any other state.

A majority of California’s voters, with malice toward none, have decided not to try this experiment, at least for now. Nothing in our Constitution gives the courts the extraordinary and dangerous power to force it upon them.

Charles J. Cooper

Washington

Mr. Cooper represents Proposition 8 Official­­ ­Propo­nents in Perry v.­ ­Schwarzen­egger.

Gay Marriage and the Constitution Why Ted Olson and I are working to overturn California's Proposition 8.

By DAVID BOIES When I got married in California in 1959 there were almost 20 states where marriage was limited to two people of different sexes and the same race. Eight years later the Supreme Court unanimously declared state bans on interracial marriage unconstitutional.

Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California's Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, "decisions of this Court confirm that the right to marry is of fundamental importance for all individuals." In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.

There were legitimate state policies that supported the Wisconsin and Missouri restrictions held unconstitutional. By contrast, there is no legitimate state policy underlying Proposition 8. The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion. It is difficult to the point of impossibility to envision two love-struck heterosexuals contemplating marriage to decide against it because gays and lesbians also have the right to marry; it is equally hard to envision a couple whose marriage is troubled basing the decision of whether to divorce on whether their gay neighbors are married or living in a domestic partnership. And even if depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex, it is impossible to see how that could be thought to be as likely to lead to a stable, loving relationship as a marriage to the person they do love.

Moreover, there is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation. Even if there was, the attempt would be constitutionally defective. But, in fact, the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters. It is also a condition that, like race, has historically been subject to abusive and often violent discrimination. It is precisely where a minority's basic human rights are abridged that our Constitution's promise of due process and equal protection is most vital.

Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect -- except the increase in human happiness and social stability that comes from permitting people to marry for love. Several states -- including Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont -- have individually repealed their bans on same-sex marriage as inconsistent with a decent respect for human rights and a rational view of the communal value of marriage for all individuals. But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.

The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. As Justice Anthony Kennedy elegantly wrote rejecting the notion that a history of discrimination might trump constitutional rights, "Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

Gays and lesbians are our brothers and sisters, our teachers and doctors, our friends and neighbors, our parents and children. It is time, indeed past time, that we accord them the basic human right to marry the person they love. It is time, indeed past time, that our Constitution fulfill its promise of equal protection and due process for all citizens by now eliminating the last remnant of centuries of misguided state discrimination against gays and lesbians.

The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.

Mr. Boies is the chairman of Boies, Schiller & Flexner LLP.